Coronavirus and H&S: A dilemma for employers

Thursday 26 March 2020

With the coronavirus pandemic causing disruption to our everyday lives, to an extent unprecedented in peacetime, many businesses are struggling to decide how to react.

A common question being asked is “If our employees would struggle to work from home should we insist that they come into work?”

An employer who elects to operate normally and requires employees to come to work must take into account provisions in the Employment Rights Act 1996 (ERA), specifically sections 44 and 100. These sections rarely attract attention but could have serious implications for an employer who insists employees attend work as normal.

What do sections 44 and 100 actually say?

Simply put, the ERA describes a situation in which an employee, believing he or she is in danger, leaves work (or takes other protective steps) as a response to that perceived danger, and as a consequence is dismissed or is subjected to some other detriment. A dismissal in these circumstances is automatically unfair (section 100) and if an Employment Tribunal finds that an employee has suffered a detriment compensation can be awarded (section 44).

Both sections describe (in identical terms) the circumstances in which an employee who withdraws or removes himself from the workplace, or takes action to protect himself, will have the protection of the ERA.  The actions which are protected are described in this way:

• . . . in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work . . .
• . . . in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.

The question whether the steps which an employee took, or proposed to take, were appropriate is judged by reference to all the circumstances including, in particular, the employee’s knowledge, and the facilities and advice available to him at the time.

Both sections make it clear that what counts is what the individual taking the action believes. In other words, the test is subjective. Therefore, the burden of proof on the employee to show that he or she believed there was serious and imminent danger is relatively low.

Given that the provisions protect an employee who refuses to work (or return to work) where the employee perceives unsafe working conditions exist, an employee who comes within the protection offered by the ERA could stay off work on full pay until the problem is rectified and the danger is removed.

What should an employer do to limit their risk of falling foul of the legislation?

Every employer should take practical steps to follow the Government’s latest guidance. At present the Government is not demanding wholesale closure of those businesses which are not on its list of exempt business activities. Instead the Government is advising that employees in work should adopt the social distancing rule of being 2 metres apart.

It may be worth considering relying on reduced staffing levels where this is practicable, using the new furlough provisions to stand down those employees whose presence at work is not critical.

Where some or all of the workforce is required to be at work it may be advisable to:

• supply employees with ‘personal protection equipment’ such as masks, gloves, and hand sanitiser,
• ensure there are sufficient hand washing facilities,
• arrange for the daily (or more frequent) disinfecting of work surfaces and other risk spots, and
• limit employees’ contact with the general public by closing public counters, halting or reducing face-to-face interactions with customers and clients, and moving business activities online where possible.

If you have any questions about how these employee rights might affect your business, please contact a member of our Employment Law team.